On Appeal from the United States District Court for the Eastern District of Wisconsin. No. 93 CR 202 -- J.P. Stadtmueller, Judge.
Before RIPPLE and ROVNER, Circuit Judges, and MILLER, District Judge. *fn1
On January 5, 1992, a one-year-old girl was found dead in her home; six days later her two-year-old sister was found dead there. D.F., a juvenile cousin of the children, was charged, on November 17, 1993, with two counts of second degree murder. See 18 U.S.C. secs. 1111, 1153 and 5031. Following a two-day suppression hearing, the magistrate judge recommended that D.F.'s statements to mental health workers be suppressed because they were privileged communications. The district court agreed that the statements should be suppressed, but based the suppression on the involuntariness of the statements. The government has appealed that decision. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
In 1992, when D.F. was twelve years old, she was living with her aunt on the [redacted] reservation in Wisconsin. *fn2 On January 5 of that year, her one-year-old cousin was found dead. On January 11 her two-year-old cousin also was found dead. The medical examiner attributed the first death to Sudden Infant Death Syndrome and the second to Influenza A. A second medical examiner determined, however, that the deaths could have been caused by suffocation.
On December 4, 1992, D.F. was admitted, against her will, by her aunt and legal guardian to the county mental health facility, [redacted] Mental Health Center ("Center"). She remained in the Center until May 1993. D.F. had a history of assaultive behavior and drug and alcohol abuse; there is also evidence that she had suffered physical and sexual abuse during her childhood. At the time she was admitted, she was under a [redacted] Tribal Court order requiring D.F.'s guardian to seek mental health services for her. *fn3 The [redacted] County Department of Social Services also had recommended that D.F. be placed at the Center. *fn4
D.F. was admitted to a locked ward for adolescents and was placed in the residential treatment program at the Center. Patients' freedom of movement while on the ward was restricted severely. In addition to the doors being locked, there were screens securing the windows and patients had to be escorted when they left the locked area. All patients were observed by staff at least hourly. On the one occasion when D.F. ran away from the Center, she was returned forcibly by the police the next day.
D.F. was first placed in the substance abuse program. She remained in that treatment until late January 1993. The treatment primarily was overseen by social worker R.M. When D.F. was next placed in the Seasons program for treatment of her behavioral problems, the treatment was overseen primarily by B.K. In each program, D.F. was under the care of a treatment team which included a psychiatrist, a social worker, a registered nurse and other therapists. The plan of treatment included a point system to encourage good behavior and program participation. The system was based on levels which utilized privileges and punishment. Patients on the lowest level ("base zero") were confined to their rooms in only hospital gowns and no shoes, and were forbidden to talk to other patients; those on higher levels were allowed to have their own clothes and to interact with others as they saw fit. Patients were encouraged to talk and to write about their problems. They could earn points, and thereby move up levels, for having conversations with their assigned staff member at least once a shift. On the other hand, they lost points for refusing to answer questions or to write in a journal. Medication was also administered to patients by staff decision; D.F. was given Thorazine, Ativan, and Zoloft at one time or other.
Prior to her admission to the ward, D.F. had become a suspect in the deaths of her two young cousins. Staff at the Center were made aware of this suspicion in mid-December, 1992, when a social worker from [redacted] County Human Services notified Center staff. Tr. at 284; Ex. B-2. After that time, the Center staff often reminded D.F. about the state law reporting requirements and the consequences of D.F.'s statements or admissions. Nevertheless, in line with the hospital policy of encouraging patients to write about and to discuss their problems, D.F.'s treatment was designed to develop trust in staff and to encourage D.F. to reveal her secrets and to speak openly with staff about physical harm she had caused other children. D.F. was questioned directly by staff whether she had ever murdered anyone, and was asked repeatedly to make lists of all the people she had ever harmed.
One week after her arrival at the Center, D.F. was informed that her records as an alcohol abuser were confidential, but that any information about suspected child abuse or neglect was not protected. She signed a form indicating that she understood. *fn5 Ex. B-1. In addition, D.F. was warned on several occasions that any disclosures about hurting or killing a child would have to be reported to Protective Services. *fn6 D.F. did not discuss any of her past assaultive behavior for several months. On one occasion, D.F. told a staff member that she couldn't talk with staff because they were required to report what she said. Nevertheless, during her stay at the Center, D.F. did make several admissions regarding past assaultive behavior. In January 1993, D.F. admitted that she had abused three cousins. However, after signing a release to permit disclosure of the statements to social service authorities, D.F. was not prosecuted for these assaults by the [redacted] County tribal authorities. Instead, she was told that Human Services had decided tentatively to "shelve" any charges or consequences for her assaults. Furthermore, she was promised that no harm would come to her as a result of these admissions as long as she continued to make progress and to follow treatment expectations.
Some of the staff at the Center believed that they were under a legal obligation to report any admissions of child abuse to the authorities. Because they believed that any admission on the part of D.F. would have substantial criminal consequences for her, some of the staff also tried to protect her from the consequences of any confessions by arranging for her to undergo a "5th Step" session with a local minister. They anticipated that D.F.'s conversation with the minister would be privileged and therefore would give her a "safe harbor" where she could make the anticipated disclosures without her having to risk a report to the authorities. However, the session, which was held on March 16, 1993, apparently did not produce the hoped-for result. Tr. at 42-43; 297-98; 337; Ex. A-1. There were also discussions among the staff as to whether the staff could report D.F.'s admissions to authorities.
Other staff members at the Center believed that D.F. would benefit from taking responsibility for her wrongs and being held responsible for them. Some staff members at the Center were anxious to ensure that D.F.'s statements were reported accurately. One staff member, D.F.'s primary social worker in the Seasons program, B.K., prepared memoranda on her home computer in order to refresh her memory for the purposes of treatment or testimony in court. *fn7 After D.F.'s confession, staff at the Center cooperated with the F.B.I. D.F. was never informed of this cooperation, and was encouraged to continue to discuss the incident in therapy sessions.
On April 5, 1993, four months after her admission to the Center, D.F., at that time fourteen years old, admitted to having killed her two young cousins. In a group therapy session run by B.K., D.F. spontaneously told the group that she had killed her cousins. Several hours later she told another staff member of the murders, and of her relief in the disclosure because the secret had been "eating her up." During a treatment team meeting the next day, when B.K. told the other therapists of D.F.'s statement, another staff member immediately reported D.F.'s confession to Child Protective Services, a division of the [redacted] County Department of Social Services, which in turn notified the F.B.I. R.29 at 53. The resulting F.B.I. investigation led to the charges in this case. D.F. made nine other confessions while a patient at the Center.
On April 22, 1993, an appointed attorney advised D.F. not to speak to anyone about her April 5 admission; she then signed a statement invoking her Fifth Amendment right against self-incrimination. Tr. at 65-66; 74-75; 358; 364-65; Ex. A-5; Def's Ex. 12. D.F. claims B.K. ignored her invocation of her Fifth Amendment rights; the government disagrees, noting that B.K. canceled a planned interview between the F.B.I. and D.F. In fact, stated the government, no law enforcement officer interrogated D.F. or heard her confessions. D.F. also states that "therapists were cooperating with law enforcement not later than Apr. 16." Appellee's Br. at 12. The government argues that there is no evidence that anyone other than B.K. "co-operated" with law enforcement.
D.F. was charged with two counts of murder in the second degree, in violation of 18 U.S.C. secs. 1111, 1153, and 5031. Prior to trial, D.F. moved to suppress her confessions on the ground that they were coerced in violation of the Fifth Amendment's privilege against self-incrimination and guarantee of due process. The magistrate judge recommended that the statements be suppressed, not on the basis of the right against self-incrimination, but on the ground that the statements were protected from disclosure by a psychotherapist-patient privilege.
The district court agreed that the statements ought to be suppressed. United States v. D.F., 857 F. Supp. 1311 (E.D. Wis. 1994). It declined to base its ruling either on the psychotherapist-patient privilege or on non-compliance with Miranda. Instead, the district court grounded its suppression of D.F.'s statements as involuntary under the Due Process Clause of the Fifth Amendment. Focusing on the holding of the Supreme Court of the United States in Colorado v. Connelly, 479 U.S. 157, 167 (1986), the district court rejected the view that the strictures of the Fifth Amendment's Due Process Clause are applicable only when the impermissible pressure is brought by law enforcement personnel. Rather, it read Connelly to permit the suppression of a statement as involuntary when impermissible pressure had been brought by others working on behalf of the state: "I only suggest that that inquiry ...